SUB-INSPECTOR OF POLICE, WASGIYAWATTE POLICE STATION AND OTHERS

023-SLLR-SLLR-1993-2-SUB-INSPECTOR-OF-POLICE-WASGIYAWATTE-POLICE-STATION-AND-OTHERS.pdf


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Sri Lanka Law Reports
[1993] 2 Sri LR.
HERATH BANDA
v.SUB-INSPECTOR OF POLICE, WASGIYAWATTE POLICESTATION AND OTHERS
SUPREME COURT.
AMERASINGHE, J.
PERERA, J. ANDWIJETUNGA, J.
S. C. APPLICATION NO. 270/93.
OCTOBER 25, 1993.
Fundamental Rights – Application to withdraw application for infringement.Held :
There may be certain occasions where in the circumstances of a particular casethe Court may permit the withdrawal of an application for infringement offundamental rights. Each case must depend on its own circumstances, leave towithdraw being a matter within the absolute discretion of the Court. Applicationspertaining to fundamental rights are not ordinary private matters.
Cases referred to :
Basheshar Nath v. Commissioner of Income Tax AIR 1959 S.C. 149,157 – 159.
Velmurugu v. The Attorney-General and another Vol. 1 FRD-180.
APPLICATION to withdraw application for relief for infringement' of fundamentalrights guaranteed by Article 11 of the Constitution.
K. Tiranagama for petitioner.
D. P. Kumarasinghe, D. S. G. with S. Rajaratnam S.C. for Attorney-General.
Cur. adv. vult.
November 29, 1993.
AMERASINGHE, J.
On 28 May 1993 the Petitioner complained as follows: The firstrespondent, a Sub-Inspector of Police, came to his home and orderedhim to accompany him to the Police Station; when he sought anexplanation, he was addressed in rude terms, slapped and draggedout and struck all over his body with a thick stick drawn out of the
SCHearth Banda v. Sub-Inspector of Police, Wasgiyawatte Police Station
and Others (Amerasinghe, J.)325
fence in his garden until he was rendered unconscious. The Petitionerwas taken to the Polpitigama Government Hospital and later admittedto the Kurunegala Government Hospital and examined by the JudicialMedical Officer. After being in the Kurunegala Hospital for five days,he was transferred to Ehetuwewa Government Hospital where he wastreated for two days. Thereafter he was treated by an Ayurvedicphysician. As a result of the assault he is now bedridden.
The Petitioner prayed that the Court declares his fundamentalrights enshrined in Article 11 of the Constitution had been violatedand claimed Rs. 200,000 as compensation.
On 3 June 1993, this Court granted the Petitioner leave to proceedwith his application and in terms of his prayer the Court directed theJudicial Medical Officer, Kurunegala, to examine the petitioner andreport to this Court.
When the matter came up for argument on 24 August 1993,Counsel for the Petitioner moved that the Petitioner be allowed towithdraw the petition since the petitioner had " settled his differenceswith the police officer."
The respondents were absent and unrepresented on that date.The Court directed that the matter be set down for hearing on 25October 1993 and that the Attorney-General be asked to assist theCourt on the 'question whether the request of the petitioner shouldbe acceded to.
On 25 October 1993 the learned Deputy Solicitor-General, citingBasheshar Nath v. Commissioner of Income Tax <’>, submitted thatan .application in respect of the alleged violation of fundamental rightswas not a private matter between parties which could be settled orwithdrawn at the instance of the parties especially with regard to aviolation of Article 11 of the Constitution. I
I agree that applications pertaining to fundamental rights are notordinary private matters. However, I am reluctant to accept anysuggestion that the question of withdrawal depends on the importanceof the right violated. I do not think any useful purpose will be servedby attempting to arrange the rights on a hierachical scale although
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admittedly, as pointed out in Velmurugu's Case (2), Article 11 hasspecial distinguishing features.
There may be certain occasions where in the circumstances ofa particular case the Court may permit the withdrawal of an appli-cation. Indeed, hundreds of applications are withdrawn in this wayeach term. Each case must depend on its own circumstances, leaveto withdraw being a matter within the absolute discretion of the Court.
In the matter before us the medical evidence clearly supports theaverments in the petition relating to the brutal assault complainedof. The reasons for a change of heart are not clear, but the petitionerin his petition did allege that attempts had been made to preventhim from seeking redress in Court. In the circumstances, permissionto withdraw the petition is refused.
I declare that the petitioner's rights under Article 11 of the Con-stitution have been violated. As the petitioner has, according tolearned Counsel, “settled" his “differences" with the Police Officer,no compensation is awarded.
The Inspector-General of Police is directed to investigate thecomplaint against the Police Officer concerned and report to this Courton or before 10 April 1994 as to what action he has deemed fit totake in the matter. The Registrar should forward certified copies ofthe petition, affidavits and Medical Reports to the Inspector-Generalof Police with a copy of this order.
PERERA, J. – I agree
WIJETUNGA, J. – I agree
Application to withdraw refused.